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HomeMy WebLinkAbout692 - Ordinances ORDINANCE NO. 692 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. DRC2002-00643, TO ESTABLISH A UNIQUE PARKING RATIO FOR A PROPOSED SENIOR APARTMENT PROJECT LOCATED AT THE SOUTHWEST CORNER OF CHURCH STREET AND MAYTEN DRIVE, WITHIN THE TERRA VISTA COMMUNITY PLAN, AS PROVIDED FOR IN SECTION 65864 OF THE CALIFORNIA GOVERNMENT CODE FOR REAL PROPERTY DESCRIBED HEREIN, AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 227-'151-70. A. RECITALS. (i) California Government Code Section 65864 now provides, in pertinent part, as follows: "The Legislature finds and declares that: a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other developments to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. b) Assurance to the applicant for a development project, that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development." (ii) California Government Code Section 65865 provides, in pertinent part, as follows: "Any city...may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property as provided in this article..." (iii) California Government Code Section 65865.2 provides, in part, as follows: '% Development Agreement shall specify the duration of the Agreement, the permitted uses of the property, the density of intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The Development Agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for discretionary actions shall not prevent development of the land for the uses and to the density of intensity of development set forth in the Agreement..." Ordinance No. 692 Page; of 26 (iv) "Attached to this Ordinance, marked as Exhibit "A" and incorporated herein by this reference is proposed Development Agreement DRC2002-00643, concerning that property located at the southwest corner of Church Street and Mayten Avenue, and as legally described in the attached Development Agreement. Hereinafter in this Ordinance, the Development Agreement attached hereto as Exhibit "A" is referred to as the "Development Agreement." (v) On October 23, 2002, the Planning Commission of the City of Rancho Cucamonga held a duly noticed public hearing concerning the Development Agreement and concluded said hearing on that date and recommended approval with conditions through the adoption of its Resolution No. 02-100. (vi) On November 6, 2002, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing concerning the request. (vii) All legal prerequisites prior to the adoption of this Ordinance have occurred. B. ORDINANCE. NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does hereby find, determine, and ordain as follows: SECTION 1: This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct. SECTION 2: Prior to the adoption of this Ordinance, this Council has reviewed the Initial Study Parts I and II, the Development Agreement, and certified the Negative Declaration in compliance with the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder. SECTION 3: Based upon substantial evidence presented during the above- referenced public hearings on October 23 and November 6, 2002, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows: a) The location, design, and proposes uses set forth in this Development Agreement are compatible with the character of existing development in the vicinity. b) The Development Agreement conforms to the General Plan of the City of Rancho Cucamonga. .SECTION 4: It is expressly found that the public necessity, general welfare, and good zoning practice require the approval of the Development Agreement. Ordinance No. 692 Page 3 of 26 SECTION 5: This Council hereby approves Development Agreement DRC2002-00643, attached hereto as Exhibit "A." SECTION 6: The Mayor shall sign this Ordinance and the City Clerk shall cause the same to be published within 15 days after its passage at least once in the Inland Valley Daily Bulletin, a newspaper of general circulation published in the City of Ontario, California, and circulated in the City of Rancho Cucamonga, California. PASSED, APPROVED, AND ADOPTED this 20th day of November 2002. AYES: Alexander, Biane, Curatalo, Dutton, Williams NOES: None ABSENT: None ABSTAINED: None ~ William//~exan~er, Ma~or ATTEST: De ra J. Adam ,~CMC, City Clerk Ordinaqce No. 692 Page z of 26 I, DEBRA J. ADAMS, CITY CLERK of the City of Rancho Cucamonga, Califor ~ia, do hereby certify that the foregoing Ordinance was introduced at a Regular Meeting of the C. ouncil of the City of Rancho Cucamonga held on the 6th day of November 2002, and was p~ ssed at a Regular Meeting of the City Council of the City of Rancho Cucamonga held on the 20t, day of November 2002. Executed this 21s~ day of November 2002, at Rancho Cucamonga, California. ~~C, City Cler~kk Ordinance No. 692 Page 5 of 26 RECORDING REQUESTED BY RECORDING FEES EXEMPT DUE TO AND WHEN RECORDED MAIL TO: GOVERNMENT CODE SECTION 27383 PILLSBURY WINTHROP LLP 10100 Santa Monica Boulevard, Suite 2300 Los Angeles, CA 9006'7 City Clerk Attn: Lewis G. Feldman, Esq. (Spate Above Linc For Recorder's Use Only) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA AND FOUNTAINGLEN PROPERTIES, L.P. Ordinance No. 692 Page 6 of 26 TABLE OF CONTENTS 1. DEFINITIONS .................................................................................................................. 2 I1. BENEFITS TO CITY ....................................................................................................... 3 III. PROJECT DEVELOPMENT .......................................................................................... 3 A. Permitted Uses ........................................................................................................ 3 B. Rules, Regulations and Official Policies ................................................................. 3 1. Applicable Rules ......................................................................................... 3 2. Required Parking Ratio for Project ............................................................ 3 3. Restrictive Covenant for Senior Housing .................................................... 3 4. Conflicting Enactments with Respect to Parking ........................................ 4 C. Fulurc Approvals ..................................................................................................... 4 D. Permitted Conditions ............................................................................................... 4 E. Term of Map(s) and Other Project Approvals ........................................................ 4 F. Timing of Development .......................................................................................... 4 G. Moratorium .............................................................................................................. 5 H. Vesling of Owner's Rights ...................................................................................... 5 I. ' Development Agreement/Project Approvals .......................................................... 5 IV. COOPERATION/IMPLEMENTATION ....................................................................... 5 A. Furt.her Assurances; Covenant to Sign Documents ...............................................5 B. Processing During Third Party Litigation .............................................................. 5 C. State, Federal or Case Law ...................................................................................... 6 D. Other Governmental Bodies .................................................................................... 6 E. Defense of Agreement ............................................................................................. 6 F. Age Restriction ........................................................................................................ 6 V. GENERAL PROVISIONS ............................................................................................... 6 A. Covenants Run with the Land ................................................................................. 6 B. Transfers and Assignments .........................' ............................................................ 7 1. Right to Assign ............................................................................................ 7 2. Liabilities Upon Transfer ............................................................................ 7 C. Mortgagee Protection .............................................................................................. 7 D. Statement of Compliance ........................................................................................ 8 i 710655.2 Ordin~ nce No. 692 Page" of 26 E. Default ..................................................................................................................... 8 F. Annual Review ........................................................................................................ 9 G. Default by City ........................................................................................................ 9 H. Legal Action ............................................................................................................ 9 I. Waiver; Remedies Cumulative .............................................................................. 10 J. Future Litigation Expenses .................................................................................... 10 I. Payment to Prevailing Party ...................................................................... 10 2. Scope of Fees ............................................................................................ 10 3. Term ...................................................................................................................... 10 L. Permitted Delays; Supersedure by Subsequent Laws ........................................... 1 1 I. Permitted Delays ....................................................................................... 11 2. Supersedure by Subsequent Laws ............................................................. 11 M. Amendment of Agreement .................................................................................... 11 VI. MISCELLANEOUS ........................................................................................................ 11 A. Negation of Partnership ......................................................................................... 1 1 B. No Third Party Beneficiary ......................................................................... ~ ......... 12 C. Entire Agreement .................................................................................................. 12 D. Severabi]ity ........................................................................................... ' ................ 12 E. Construction of Agreement ................................................................................... 12 F. Section Headings ................................................................................................... 12 G. Agplicabl¢ Law ..................................................................................................... 12 H. /qotices ................................................................................................................... 12 1. 'lime is of the Essence ........................................................................................... 13 J. Limitation of Liability ........................................................................................... 13 K. Recordation ........................................................................................................... 13 EXHIBlT A EXHIBIT B ii Ordinance No. 692 Page 8 of 26 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA AND FOUNTAINGLEN PROPERTIES, LP THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of this day of ,2002, by and between the C1TY OF RANCHO CUCAMONGA, a municipal corporation and general law city ("City"), and FOUNTAINGLEN PROPERTIES, LP, a Delaware limited partnership ("Owner"). WlTNESSETH: A. The lack of certainty in the approval of dcvelopmem projects can result in a waste of resources, escalate the cost of housing and other development, and discourage investment in and comnUtment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. B. California Government Code Sections 65864-65869.5 (the "Development Agreement Statute") were therefore enacted authorizing a municipality to enter into binding development agreements with persons having legal or equitable interests in real properly. C. Owner has a legal or equitable interest in certain real property located in City more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). D. On ,2002, the City Council (the "Council"), after making appropriate findings, approved a Mitigated Negative Declaration pursuant to the provisions of the California Environmental Quality Act. E. Concurrently with adoption of the Ordinance approving this Agreement, the City has approved Tentative Parcel Map No. 15923 with Conditions of Approval ("Parcel Map"), and Development Plan Review No. DRC2002-00633 ("Development Review"). This Agreement, the Parcel Map and the Development Review shall constitute thc "Project Approvals." F. Development of the Project into a 216 unit senior residential community, including associated amenities (the "Project"), will further the comprehensive planning objectives contained within City's General Plan, as amended, and will result in public benefits, including, among others, the following: !. Fulfilling long-term economic and social goals for City and the community; 2. Providing fiscal benefits to City's General Fund; 3. Providing short-term construction employment within City; and 4. Providing housing which will help to satisfy City's obligation to meet City's share of regional housing needs, in particular the need for active senior housing. 1 Ordinance No. 692 ' Page~. of 26 G. For the reasons recited herein, City has determined that the Project is a development for which a development agreement is appropriate under the Development Agreement Statute. H. The Council has determined that this Agreement is consistent with the General Plan and specifically has determined that this Agreement is fair, just and reasonable, and City has concluded that the economic interests of its citizens and the public health, safety and welfare will be best served by entering into this Agreement. 1. In light of the benefits to the City as a result of the development of the Project, City has agreed to enter into this Agreement to modify the parking standards that would otherwise be applied to the Project. The purpose of the modified parking standards is to recognize the unique parking needs of a senior housing project, as more fully explained in the Parking Analysis, dated lune 12, 2002, prepared by Linscott, Law and Greenspan Engineers. J. The Planning CorrmUssion of City (the "Planning comrmssion") held duly noticed public hearings on this Agreement on October 23, 2002. Following the close of the public hearing, the Planning Commission adopled Resolution No. 02-100, recommending approval of the Agreement to the Cily Council with conditions. K. The Council, after a duly noticed hearing, adopted Ordinance No. approving this Agreement, which ordinance will become effective on (the "Effective Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, the parties hereto agre9 as follows: SECTION L DEHNITIONS. The following terms shall have the meanings defined for such terms in the Sections set forth below: Term Section Applicable Rules Section IlI.B. 1. City Introduction Council Recital D. Declaration of Restrictions Section III.B3. and Exhibit B. Development Al~ement Statute Recital B. Duration of the I~jcct Section III.B.3. Effective Date Recital K. Future Approvals Section III.C. Mortgagee Section V.C. Notice of Non-Compliance Section V.F. Owner Introduction Project Recital F. Project Approvals Recital E. Property Recital C. and Exhibit A. Related Parties Section VI.J. 2 Ordinance No. 692 Page 10 of 26 Required Parking Ratio Section III.B.2. Subsequent Rules Section llI.B.4. Parcel Map Recital E. Term Section ¥.K. Vested Rights Section III.H. SECTION 11. BENEFITS TO C1TY. In consideration of the benefits resulting from this Project, including, but not limited to, the provision of active senior housing opportunities for the Duration of the Project, as such term is defined in Section Ill (B)(3), and the benefit to the community that the development of the Project represents, all of which will provide a significant overall benefit to City, City has agreed to enter into this Agreement. SECTION 111. PRO~IECT DEVELOPMENT. A. Permitted Uses. The parties hereby agree that, for the term of this Agreement, the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, the location of public improvements, and the required amount of off-street vehicular parking spaces for the project, shall be those set forth in this Agreement, the Project Approvals and the "Applicable Rules" (as hereinafter defined). B. Rules, Regulations and Official Policies. I. Applicable Rules. The parties hereby agree that, for the term of this Agreement, the rules, regulations and official policies governing permitted uses, governing density, and governing design, improvement and specifications applicable to development of the Property, shall be those rules, regulations and official policies in force at the time of the Effective Date, except as modified by this Agreement, including, without limitation, the Project Approvals (collectively, the "Applicable Rules"). Prior to the Effective Date, City and Owner shall use reasonable effonsto identify two identical sets of the Applicable Rules, one set for City and one set for Owner, so that if it becomes necessary in the future to refer to any of the Applicable Rules, there will be a common set of th~ Applicable Rules available to both parties. 2. Required Parking Ratio for Project. Notwithstanding any rule, regulation or official policy of the City to the contrary, the amount of required off-street vehicular parking spaces for development of the Project shall be the ratio of 1.15 parking spaces for each dwelling unit in the Proje~l (the "Required Parking Ratio.") The Required Parking Ratio shall include all required resident, gnest and employee parking spaces. The Required Parking Ratio applied to the total number of dwelling units (216 units) for the Project equals 248.4 parking spaces which shall be rounded up to require a minimum of 249 off-street parking spaces. Of the 249 off-street parking spaces required, not less than 108 of those spaces shall be provided in individual "private garages," and not less than 108 of those spaces shall be provided in "carports," as such terms are defined in Section 17.02.140 (C) of the Rancho Cucamonga Development Code. 3. Restrictive Covenant for Senior Housing. In accordance with the Project Approvals, the Project shall be a senior housing project by which the Owner agrees and covenants that, with the exception of the employees of Owner, at least one resident in each 3 Ordinance No. 692 Page 11 of 26 housing unit in the Project shall be at least 55 years of age and that each other resident in thc same dwelling unit, if any, shall be a qualified permanenl resident, a permitted health care resident, or a person under 55 years of age whose occupancy is permitted under subdivision (h) of Civil Code Section 51.3 or under subdivision (b) of Civil Code Section 51.4. In order to ensure that this restriction continues for the Duration of lhe Project, as such term is defined in this subsection, and beyond the expiration of this Agreement, a declaration of restrictions in Ihe form attached hereto as Exhibit B (the "Declaration of Restrictions") shall be executed by the Owner and recorded against the Property which shall remain in effect for the Duration of the Project or until released with the written approval of the City. For purposes of this Agreement, the term "Duration of the Project" shall mean the period of time from the commencement of construction of the Project until the point in time that is the earlier of either: (i) the complete demolition of the Project; or (ii) the City's approval of a change in use from a senior housing project to some other use of the Property. 4. Conflicting Enactments with Respect to Parking. Any change in the araotmt of required off-street vehicular parking for the Project, including, without limitation, any change in any applicable general, community plan, area or specific plan, zoning, subdivision role or regulation, adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the Council, the Planning Commission or any other board, agency, comrmssion or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Property and which would conflict in any way with or be more restrictive than the Required Parking Ratio ("Subsequent Rules"), shall not be applied by City to the Property. Owner may give City written notice of its election to have any Subscquem Rule applied to the Property, in which case such Subsequent Rule shall be deemed to be an Applicable Rule. C. Future Approvals. Any development of the Property shall require all discr~onary al,psovals required by the Applicable Rules (collectively, the "Future Approvals"). D. Permitted Conditions. Provided Owner's applications for any Future Approvals are consistent with this Agreement and the Applicable Rules, City shall grant in a timely manner the Future Approvals in accordance with the Applicable Rules. E. Term of Map(s) and Other Project Approvals. Pursuant to California Government Code Sections 66452.6(a) and 65863.9, the term of any subdivision or parcel map that may be processed on all or any portion of the Property and the term of each of the Project Approvals shall be extended for a period of time through the scheduled termination date of this Agreement as set forth in Section v.K below. F. Timin£ of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parlies' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that Owner shall have the right (without 4 710655 2 Ordinance No. 692 Page 12of26 obligation) to develop the Property in such order and at such rate and at such times as Owner deems appropriate wilhin the exercise of its subjective business judgment. G. Moratorium. No City-imposed moratorium or other limitation relating to the required amount of off-street vehicular parking for development of the Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and whether enacted by the Council, an agency of City, the electorate, or otherwise affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or ]imitation on parking is in conflict with Required Parking Ratio set forth in this Agreement; provided, however, the provisions of this Section shah not affect City's compliance with moratoria or ether limitations mandated by other governmental agencies or court-imposed moratoria or other limitations. H. Vesting of Owner's Rights. The rights and entitlements granted to Owner pursuant to this Agreement shall be and constitute "vested rights" or the equivalent of "vested rights", as that term is defined under California law applicable to the development of land or property and the right of a public entity to regulate or control such development of land or property, with respect to the ability of Owner to constmct the Project in compliance with the Required Parking Ratio set forth in this Agreement. I. Development A~-eement~Project Approvals. In the event o~' any inconsistency between any Project Approval and this Agreement, the provisions of this Agreement shall control. SECTION IV. COOPERATION/IMPLEMENTATION. A. Further Assurances; Covenant to Sign Documents. Each party shall take all actions and do all thiag$, and execute, with acknowledgment or affidavit, if required, any and all documents and writings, that may be necessary or proper to achieve the purposes and objectives of this Agreement, including, but not limited to, the execution and recordation of the Declaration of Restrictions that restricts the use of the project for seniors for the Duration of the Project. B. Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Owner relating to this Agreement, the Project Approvals Or to other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project, appro~'a.~ of ibc Future Approvals, or issuance of "Ministerial Approvals" {as hereinafter defined), unless thc third party obtains a court order preventing the activity. City shall not stipulate to the issuance of any such order. For purposes of this Agreement the term "Ministerial Approvals" shall be defined to mean approvals requiring the determination of conformance with the Applicable Rules, including, without limitation, site plans, design review, development plans, land use plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment pen'nits, conditional and temporary use permits, certificates of use and occupancy 5 Ordinance No. 692 Page 13 of 26 and approvals and entitlements and related matters as may be necessary for the completion of the development of the Property. C. State, Federal or Case Law. Where any state, federal or case law allows City to exercise any discretion or take any act with respect to that law, City shall, in an expeditious and timely manner, at the earliest possible time, (a) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (b) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. D. Other Governmental Bodies. To lhe extent that Cily, lbe Council, Planning Commission or any other City agency constitutes and sits as any other board or agency, it shall not take any action that conflicts with City's obligations under this Agreement. E. Defense of Agreement. 1. Owner shall defend at its sole expense any lawsuit, claim or action brought against City, its agents, officers, or employees, arising out of the approval, execution or implementation of this Agreement. The Owner shah reimburse the City, its agents, officers, or employees for any court costs and attomey's fees which the City, its agents, officers or ,.-mployees may be required to pay as a result of such action. The City may, at its sole discretion, participate at its own expense in the defense of any such action but such participation shall not :elieve applicant of his obligations under this subparagraph. 2. Without limiting the terms and conditions of subparagraph (IV)(E)(I) above, City shall take all actions which are necessary or advisable to uphold the validity and ~'nforceability of this Agreement. If this Agreement is adjudicated or determined to be invalid or menforeeable, City agrees, subject to all legal requirements, to consider modifications to this ~greement to render it va]id and enforceable to the extent permitted by applicable law. F. Age Restriction. Owner agrees and covenants that for the Duration of the Project, ~nd with the exception of the employees of Owner, at ]east one resident in each housing unit in he Project sba]] be at least 55 years of age and that each other resident in the same dwelling unit, fany, shall be a qualified permanent resident, a permitted health care resident, or a person under ~5 years of age whose occupancy is permitted under subdivision (h) of Civil Code Section 51.3 , >r under subdivision (b) of Civil Code Section 51.4. This requirement shall not be rescinded without the written approval of the City and shah be reflected in the Declaration of Restrictions '.~hich shall be executed by Owner, recorded against the Property, and shall remain in effect for ibc Duration {tithe Project or until released by the City. 1 ;ECTION V. GENERAL PROVISIONS. A. Covenants Run with the Land. All of the provisions, agreements, fights, powers, : tandards, terms, covenants and obligations contained in this Agreement shall be binding upon I he parties and their respective heirs, successors (by merger, reorganization, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons i cquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective 6 Ordinance No. 692 Page 14of26 heirs, successors and assigns. All of the provisions of this Agreement shall constitute covenants running with the land. B. Transfers and Assignments. 1. Righl to Assign. Owner shall have the right to sell, assign or transfer all or portions of the real property comprising the Property to any person at any time during the term of this Agreement. 2. Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, transfer or assignment of all or any portion of the Property, Owner shall be released from its obligations under this Agreement with respect to the Property, or portion thereof, so llm'lsferred arising subsequent to the effective date of such transfer if (i) Owner has provided to City ten days' written notice of such transfer and (ii) the transferee has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the Properly so transferred. Upon any transfer of any portion of the Property and the express assumption of Owner's obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Owner's rights hereunder with respect to any portion of the Property not owned by such transferee. The transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferee, and any amendment to this Agreement between City and a transferee shall only affect the portion of the Property owned by such transferee. C. Mortgagee Protection. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lender(s) providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and pu~oses of this Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust ("Mortgagee") of the Property shall be entitled lo the following rights and privileges: 1. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the · Property made in good faith and for value. 2. Any Mortgagee may give notice to City in writing that it holds a mortgage in the Property and may request copies of any nolice of default given to Owner under the terms of this Agreement to be sent to that Mortgagee. Any such notice shall include the address to which the Mortgagee desires copies of notices to be mailed. If Cily timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the lerms of 7 Ordinance No. 692 Page ' 5 of 26 this Agreement, City shall provide a copy of that notice to the Mortgagee within ten days of seading thc notice of default to Owner. The Mortgagee shall have thc right, but not thc obligation, to cure the default during the remaining cure period allowed such party under this Agreement, and City shall accept such cure by or at the instance of the Mortgagee as if the same had been made by the Owner. 3. Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of thc mortgage or deed of trust, or deed in lieu of such fonx:losure, shall take thc Property, or part thereof, subject to the terms of this Agreement; provided, however, in no event shall such Mortgagee be liable for any monetary obligations of Owner arising prior to acquisition of title to the Property by such Mortgagee, except that any such Mortgagee or its successors or assigns shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Agreement for the Property, or portion thereof, acquired by such Mortgagee have been paid to City. D. Statement of Compliance. Within thirty days following'any written request which either City or Owner may make from time to time, the other shall execute and deliver to the requesting party a statement certifying that to the City's/Agency's knowledge: (1) this Ageement is unrnodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of ;uch modifications; (2) there are ao current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (3) any odier reasonable information requested. thc failure to deliver such statement within such time shall be conclusive upon the party which £aila to deliver such statement that this Agreement is in full force and effect without modification ;and that there are no uncured defaults in thc performance of the requesting party. The City Manager shall be authorized to execute any such slatcment. E. Default. Failure by City or Owner to perform any term or proviaion of th!s t~.g~cement for a period of thirty days from the receipt of written notice thereof from the other ;hall constitute a default under this Agreement, subject to extensions of time by mutual Consent n writing. Said notice shall specify in detail the nature of the alleged default and the manner in ~hieh said default may be satisfactorily cured. If the nature of the alleged default is such that it .:armol reasonably be cured within such 30-day period, the commencement of the cure within ;uch time period and the diligent proseculion to completion of the cure shall be deemed a cure within such period. Subject to the foregoing, after notice and expiration of the 30-day period without cute, the notifying party, at its option, may institute legal proceedings pursuant to this Agreement ~tndtor give notice of intent to terminate this Agreement pursuant to Government Code Section ti5868. Following such notice of intent to terminate, the matter shall be scheduled for ~ onsideration and review by the Council within thirty calendar days in the manner set forth in GoYemment Code Sections 65867 and 65868. Following consideration of the evidence presented in said review before the Council and a determination that a default exists, the party ~ lleging the default by the other party may give writlen notice of termination of this Agreement ! :~ the other party. 8 Ordinance No. 692 Page 16 of 26 F. Annual Review. 1. Pursuant to Government Code Section 65865.1, throughout the term of this Agreement, good faith compliance with the terms of this Agreement by Owner shall be reviewed by the Planning Commission at the regularly scheduled Planning comrmssion meeting next following each annual anniversary of the Effective Date. If as a result of such review, City reasonably determines, on the basis of substantial evidence presented at such meeting, that Owner has not complied in good faith with the terms and conditions hereof, City shall provide written notice thereof ("Notice of Non-Compliance"), stating in specific detail and specific reasons for such finding. After City delivers the Notice of Non-Compliance, Owner shall have the right to cure such non-compliance as provided in Section v.E. above. In the event that Owner does not timely cure the non-compliance after a Notice of Non-Compliance is delivered by City or, if during the period which Owner must cure such default, Owner ceases to make reasonable efforts to effect such cure, City may proceed to terminate this Agreement on ten days~ prior written notice to Owner in accordance with the termination procedure set forth in Section v.E. above. 2. In addition to the provisions of subparagraph (V)(F)(I) above, and without limitation thereto, on or before Ma~ch 15 of each year following commencement of the Project, the Owner, or its representative, shall file a report of continuing program compliance with the City. Each such report shall contain information as City may require including, but not limited to, the following: a. a project occupancy profile, including the age of all occupants; and b. an on-site parking couni survey conducted over a two-day period, including a Saturday, between the hours of 7:00 a.m. and 11:00 p.m. of each such day in the two- day period. In addition, City shall be allowed to conduct its own annual survey of the residents in the Project for purposes of assessing the needs of the residents of the Project; however, the City's survey shall be for informational purposes only and in no event shall the results of this survey affecl the lerms of this Agreement. G. Default by City. In the event City defaults (as defined in Section v.E. herein) under the terms of this Agreement, Owner shall have all fights and remedies provided herein or under applicable law, including the specific performance of this Agreement. H. Legal Action. Any party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation hereof, or enforce by specific performance the obligations and rights of the parties hereto. Pursuant to Code of Civil Procedure Section 638, el seq., all legal actions shall be heard by a referee who shall be a retired judge from either the San Bemardino County Superior Court, the California Court of Appeal, the United States District Court or the United States Court o/Appeals, provided that the selected referee shall have experience in resolving land use and real property disputes. Owner and City shall agree upon a single referee who shall then try all issues, 9 Ordinaqce No. 692 Page 17 of 26 whether of fact Or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before such referee. If Owner and City are unable to agree on a referee within ten days of a written request to do so by either party hereto, either party may seek to have one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding shall initially be borne equally by the parties. Any referee selected pursuant to this Section v.H. shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. I. Waiver; Remedies Cumulative. Failure by City or Owner to insist upon the strict performance of any of the provisions of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future. No waiver by City or Owner of a default or breach of any other party shall be effective or binding upon it unless made in writing, and no such waiver shall be implied from any omission by City or Owner to take any action with respect to such default or breach. No express written waiver of any defaults or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified in such express waiver. One or more written waivers of a default or breach under any provision of this Agreement shall not be a waiver of any subsequent default or breach, and the performance of the same or any other term or provision contained in this Agreement. Subject to notice of default and opportunity to cure under Section v.E., all of the remedies permitted or available under this Agreement, at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available fight or remedy. J. Futura Litigation Expenses. 1. Payment to Prevailing Party. If City or Owner brings an action or proceeding (including, without limitation, any motion, order to show cause, cross--complaint, counterclaim, or third-party claim) by reason of defaults, breaches, tortious acts, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costa and expenses of safit including, but not limited to, reasonable attorneys' fees and expert witness fees. 2. Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred in any pest-judgment proceedings to collect or enforce the .judgment. This provision is separate and several and shall survive the merger of this Agreement Jmo any judgment on this Agreement. K. Term. Unless the "Term" (as hereinafter defined) of this Agreement is otherwise terminated, modified or extended by circumstances set forth in this Agreement or by mutual consent of the parties, the duration of this Development Agreement (the "Term") shall be the longer of either of the following: (i) five (5) years; or (ii) the expiration of the Project Approvals. Notwithstanding the foregoing, if construction of the Project is commenced within the Term, and then before the Term of this Agreement would otherwise expire, the Project is thereafter t0 Ordinance No. 692 Page i8 of 26 destroyed by fire, other calamity, by an act of God, or by the public enemy, the Project may be restored and the previously authorized uses completed, provided that restoration is started within one year thereafter and diligently pursued to completion. L. Permitted Delays; Supersedure by Subsequent Laws. I. Permitted Delays. In addition to any specific provisions of this Agreement, pedormance of obligations hereunder shall be excused and the Term of this Agreement shall be similarly extended during any period of delay caused at any time by reason of: acts of God such as floods, earthquakes, rims, or similar catastrophes; wars, riots or similar hostilities; strikes and other labor difficulties beyond the party's control (including the party's employment force); the enactment of new laws or restrictions imposed or mandated by other governmental or quasi-governmental entities preventing this Agreement from being implemented; litigation involving this Agreement, the Project Approvals, the Future Approvals or the Ministerial Approvals, which directly or indirectly delays any activity contemplated hereunder, delay in the issuance of bonds or formation of the CFD or other Financing Mechanism; orother causes beyond the party's control. City and Owner shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. 2. Supersedure by Subsequent Laws. If any federal or state law, made or enacted after the Effective Date prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with such new law. Immediately after enactment or promulgation of any such new law, City and Owner shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. Owner' and/or City shall have the right to challenge the new law preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. At Owner's sole option, the term of this Agreement may be extended for tim duration of the period during which such new law precludes compliance with the provisions of this Agreement. M. Amendment of Agreement. This Agreement may be amended from time to time by mutual consent of the panics to this Agreement, in accordance with the provisions of Government Code Sections 65867 and 65868. SECTION VI. MISCELLANEOUS. A. Negation of Partnership. The Project constitutes private development, neither City nor Owner is acting as the agent of the other in any respect hereunder, and City and Owner are independent entities with respect to the terms and conditions of this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the parties in the businesses of Owner, the affairs of City, or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. 1! 710655.2 Ordinance No. 692 Page 19 of 26 B. No Third Pariy Beneficiary. This Agreement is not intended, nor shall il be construed, to create any third-party beneficiary rights in any person who is not a party, unless expressly otherwise provided. C. Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. D. Severability. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and the same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and the rights and obligations of the parties hereto. E. Construction of Agreement. The provisions of this Agreement and the Exhibits hereto shall he construed as a whole according to their common meaning and not strictly for or against Owner or City and consistent with the provisions hereof, in order to achieve the objectives and purposes. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. F. Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. G. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the Stale of California. H. Notices. Any notice shall be in w~iting and given by delivering the same in person or by sending the same by registered, or certified mail, return receipt requested, with postage prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as follows: City: City of Rancho Cucamonga 10500 Civic Center Drive, Box 807 Rancho Cucamonga, CA 91729-0807 Attention: City Manager Facsimile: (909) 477-2849 Copy to: Richards, Watson & Gershon Attorneys at Law Number One Civic Center Circle P. O. Box 1059 Brea, CA 92822-1059 12 Ordinance No. 692 Page 20 of 26 Attention: James L. Markman, Esq. Facsimile: (714) 990-6230 Owner: FountainGlen Properties, LP 4220 Von Karman, 2nd Floor. Newport Beach, CA 92660 Attention: Glenn Carpenter Facsimile: (949) 223-5032 Copy to: Pillsbury Winthrop, LLP 10100 Santa Monica Boulevard, Suite 2300, Los Angeles, CA 90067 Attention: Lewis G. Feldman, Esq. Facsimile: (310) 286-6672 Either City or Owner may change its mailing address at any time by giving written notice of such change to the other in the manner provided herein at least ten days prior to the date such change is effected. All notices under this Agreement shall be deemed given, received, made or communicated on the earlier of the date personal delivery is effected or on the delivery date or attempted delivery date shown on the return receipt, air bill or facsimile. I. Time is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof. J. Limitation of Liability. City hereby acknowledges and agrees that Owner's obligations under this Agreement are solely those of FountainGlen, L~P. and in no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, manager, representative or agent of Owner ("Related Parties") have any personal liability, directly or indirectly, under this Agreement and recourse shall no! be available against Owner or any Related Party in connection with this Agreement or any other document or instrument heretofore or hereafter executed in connection with this Agreement. The limitations of liability provided in this Section are in addition to, and not in limitation of, any limitation on liability applicable to Owner or any Related Party provided by law or in any other contract, agreement or instrument. K. Recordation. In order to comply with Section 65868.5 of the Government Code, the parties do hereby direct the Cily Clerk to record a copy of this Agreement against the Property with the County Recorder of San Bereardino County within ten (10) days after the Effective Date. 13 Ordinance No. 692 Page ;'.1 of 26 IN WITNESS WHEREOF, Owner and City have executed this Agreement as of the date first hereinabove written. "City" CITY OF RANCHO CUCAMONGA, a municipal corporation By: Mayor Attesl: City Clerk Approved as to Form: By: City Attorney "Owner" FOUNTAINGLEN PROPERTIES LP, a Delaware limited partnership 'General Partner" By: 5Ian~: rifle: S-I Ordinance No. 692 Page 22 of 26 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On ,2002, before me, the undersigned, a Notary Public in and for said County and State, personally appeared · personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sbe/tbey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On ,2002, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. Notary Public 710655.2 Ordinance No. 692 Page 23 of 26 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Being the portion of Parcel 2 of Parcel Map 15455, in the City of Rancho Cucamonga, County of San Bemardino, State of California, as per plat recorded in Book 191 of Parcel Maps, pages 33 through 35, inclusive, in the Office of thc County Recorder of said County. B-] Ordinance No. 692 Page 24 of 26 EXHIBIT "B" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rancho Cucamonga Attn: City Clerk 10500 Civic Center Drive Rancho Cucamonga, CA 91730 SPACE ABOVE TH}S LINE FOR RECORDER'S USE DECLARATION OF RESTRICTIONS REGARDING SENIOR HOUSING PROJECT This Declaration of Reslrictions (the "Declaralion") is executed as of ,2002, by FountainGlen Properties, L.P., a Delaware limited partnership CFountainGlen"). RECITALS A. FounlainG]en is the owner of certain rea] property generally located near the southwest comer of Church Street and Mayten Avenue in the City of Rancho Cucamonga, California, as more particularly described on Exhibit A attached hereto (thc "Properly"). B. FountainGlen submitted an application for development of a senior housing apartment complex containing approximately two hundred sixteen (216) dwelling unils for senior citizens (the "Project'). In order for FountainGlen to satisfy certain requirements of the Development Agreement entered into by and between the City of Rancho Cucamonga and FountainGlen (the "Development Agreement") and effective on , FountainGlen desires to impose certain restrictions on the Property. C. The City of Rancho Cucamonga, a municipal corporation (the "City"), is intended to be a third party beneficiary of this Declaration, such that consent of the City in a form to be recorded Jn the Official Records of the County of San Bemardino, shall be required for the modification of revocation of the restrictions imposed herein. NOW, THEREFORE, FountainGlen hereby declares and agrees as follows. 1. Occupancy Restrictions. In accordance with the Project Approvals as defined in the Development Agreement, the Project shall be a senior housing project by which, with the exception of lbe employees of FountainGlen, at least one resident in each housing unit in the Project shall be at least 55 years of age and each other resident in the same dwelling unit, if any, shall be a qualified permanent resident, a permitted health care resident, or a person under 55 years of age whose occupancy is permitted under subdivision (h) of Civil Code Section 51.3 or under subdivision (b) of Civil Code Sec0on 51.4. B-2 Ordinance No. 692 Page ;'.5 of 26 2. Term. This Declaration and the restrictions against the Property contained herein shall automatically terminate and cease to affect the Property upon the earlier of (i) the complete demolition of the Project, or (ii) approval of the City pursuanl to the Code of a change in use from a senior housing project operated in accordance with the occupancy restrictions set forth in Section 1 of this Declaration to some other use of the Property. Upon notice of the occurrence of such event, the City Planner of City or his designee shall execute and record a document confirming the termination of this Declaration. Subject to the foregoing, the Property shall hereafter be held, lransferred, sold, leased, conveyed and occupied subject to the restrictions, covenants, and obligations set forth herein. 3. Modification, Revocation or Termination. This Declaration has been recorded in order to satisfy the requirements of the Development Agreement and to obtain the approval by the City of certain permits for the Project. The restrictions created herein may not be modified, revoked or terminated, except as provided in Section 2, without the written consent of the then record owner of the Property, and any such modification, revocation or termination shall not be effective unless and until the City consents thereto in writing after receiving written notice thereof from the then record owners of the Property, and such modification, revocation or termination, executed by the City Planner of City, is recorded in the Official Records of the County of San Bemardino. 4. Third Part,/Beneficiary. The City is intended to be a third party beneficiary Of this Declaration, with the right to consent to any modification or revocation hereof and the right and authority, at its sole option, to enforce the provisions hereof (including, but not limited to remedies for violation of a building permit); provided, however, that the City shall have no. liability whatsoever hereunder with respect to the condition of the Property. 5. Dedication. Nothing contained in this Declaration shall be deemed a gift or dedication of any portion of the Property to the general public or for the general public or for any public purpose whatsoever. It is the intention of FountainGlen that this Declaration shall be strictly limited to and for the purposes expressed herein. 6. Successors. The restrictions contained herein shall run with the land and automatically, and without further action by FountainGlen bind and inure to the benefit of the heirs, assigns, personal representatives, transferees and successors of FountainGlen. 7. Governing Law. This Declaration shall be governed by and construed in acconlancc with the laws of the State of California. 8. Severabilit¥. The invalidity or unenforceability of any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect he validity or enforceability of any other provision hereof, or the same provision wl3cn applied o another party or a different set of circumstances. 9. Authority. The persons executing this Declaration on behalf of FountainGlen do :~ereby covenant and warrant that FountainGlen is a duly authorized and existing limited partnership, and that FountainGlen has and is qualified to do business in California, that B-3 Ordinance No. 692 Page 26 of 26 FountainGlen has full right and authority to enter into this Declaration, and the persons signing on' behalf of FoumainGlen are authorized to do so. 10. Counterparts. This Declaration may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same Declaration. IN WlTNESS WHEREOF, FountainGlen executed this instrument effective as of the day and year first above wrilten, and City has accepted this Declaration.. FountainGlen, L.P. a Delaware limited partnership By: Its: By: Its: APPROVED: C~Y OF RANCHO CUCAMONGA Mayor AI'I~ST CilyClerk 710655 2